SCHEFF v. ROBERTS

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District Court of Appeal, Second District, Division 3, California.

SCHEFF et al. v. ROBERTS et al.

Civ. 16884.

Decided: September 26, 1949

Charles A. Thomasset, Los Angeles, for appellants. Borah & Borah, Los Angeles, for respondents.

Appeal by defendants Charles L. Fink and Charles L. Fink, doing business as Norge Refrigerator Repair Shop, from a judgment for plaintiffs in an action for damages for personal injuries and property damage tried by the court without a jury. The appeal is presented on a settled statement. Rules on Appeal, Rule 7; 22 Cal.2d 1, 7.

On January 23, 1947, a truck owned by defendant Fink and operated by Raymond W. Roberts collided with one operated by respondent Jack Scheff, in which respondent Alice Nascher was riding. It is conceded that Roberts was negligent and that his negligence proximately contributed to the happening of the accident. The court found that at the time of the accident California Refrigerator Repair Shop, a corporation, was the alter ego of Charles L. Fink; that Roberts was employed by California Refrigerator Repair Shop, a corporation, and Charles L. Fink; that Roberts was operating the truck after his regular hours of employment and with the consent and permission of Fink. Appellants contend that there is no evidence to support these findings.

California Refrigerator Repair Shop is a corporation. Fink is its president and general manager and owns about 90% of its stock. Its business is repairing refrigerator and other appliances. Fink is in control of and runs the business. The equipment for repairing the refrigerators and appliances is owned by Fink personally. The corporation does not pay him anything for the use of his equipment. The corporation has not paid any dividends in the last two or three years. All profits went into the business. Fink is paid a salary by the corporation. Roberts was employed by Fink about three years before going into the service. After Roberts left the service, he was again employed by Fink and had been working about eight months prior to the accident. Fink testified that Roberts was employed by the corporation and that he had not employed him personally in any capacity. The corporation carried all records of Roberts' employment, paid his wages, his social security, withheld taxes from his wages, and made employer's returns thereon.

The truck involved in the accident, a Studebaker, was owned by Fink personally. It had been used by California Refrigerator Repair Shop prior to 1943. It was not being used in the business at the time of the accident. It was up for sale. Roberts testified that in the course of his employment he drove a truck. On the day of the accident Roberts quit work at 6:30 p. m. and drove the truck out of the shop to go home. He was in a hurry to get home to take his wife for a treatment. He had worked late and did not want to ride a streetcar. Fink was at the shop at the time but did not see Roberts leave. Roberts did not tell Fink that he was taking the truck. He did not ask Fink if he could use the truck and Fink did not know anything about his using it. When he took the truck is was not visible from the place where Fink was in the shop. Roberts obtained the key from a drawer in the main office. He knew where the key was kept. He did not ask Fink for the key and Fink did not see him take it. Roberts had used one of Fink's regular trucks, with Fink's permission, to take his wife for treatments after working hours two or three times before this occasion. Roberts testified:

‘Q. Had you ever taken this truck home before? A. Well, two or three times I took the truck home, but that was right after I come out—I didn't——

‘Q. Did you ever have any conversation with Mr. Fink in which he told you not to take the truck? A. Well, I took a couple of other trucks, but they were regular trucks. He had rather I wouldn't take them, but under the circumstances, he loaned them to me.’

On at least one occasion when he had taken the Studebaker truck prior to the accident, he had Fink's consent to take it. Fink testified:

‘Q. Had he [Roberts] ever asked you for the truck to take his wife for treatments? A. He had asked me several weeks before that.

‘Q. You had let him have other trucks? A. I let him have a Dodge.’

Roberts was not discharged after the accident, nor was he proscecuted for taking the truck.

There is a stipulation in the record that ‘the judgment herein against defendant Charles L. Fink and Charles L. Fink doing business as Norge Refrigerator Repair Shop is predicated solely upon the findings that defendant Raymond W. Roberts was operating the Studebaker truck with the consent and permission of defendant Charles L. Fink and Charles L. Fink doing business as Norge Refrigerator Repair Shop.’

Vehicle Code section 402 provides in part: ‘Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.’ The foundation of the liability of an owner under this section is the permission, express or implied, given to another to use the vehicle. Burgess v. Cahill, 26 Cal.2d 320, 323, 158 P.2d 393, 159 A.L.R. 1304. The statutes does not operate if permission is absent. Krum v. Malloy, 22 Cal.2d 132, 134, 137 P.2d 18. Prior knowledge is not necessary in order that implied permission be inferred. Burford v. Huesby, 35 Cal.App.2d 643, 644, 647, 96 P.2d 380. Statements to the contrary in Bradford v. Sargent, 135 Cal.App. 324, 27 P.2d 93 and Howland v. Doyle, 6 Cal.App.2d 311, 44 P.2d 453, were impliedly, if not expressly, disapproved in Burgess v. Cahill, 26 Cal.2d 320, 323, 324, 158 P.2d 393, 159 A.L.R. 1304.

We are of the opinion that it cannot be held as a matter of law that the evidence is insufficient to support the finding that Roberts was operating the truck with the consent and permission of its owner, Fink. Property of the corporation and property of Fink were used together. Roberts had been permitted to drive the trucks used in the business and the Studebaker truck on several occasions, particularly when he had special need to do so. The key was left where it was available for his use. He took the truck without apparent hesitation or without apparent consciousness of disobeying instructions or violating the law. He was not discharged from his employment after allegedly taking Fink's property for his own use but was retained as before. This evidence was sufficient to justify the trial court in inferring that Roberts had implied permission to use the truck. Reed v. Cortez, 88 Cal.App.2d 416, 198 P.2d 911; Casey v. Fortune, 78 Cal.App.2d 922, 179 P.2d 99; Brown v. Aldrich, 77 Cal.App.2d 693, 176 P.2d 89; Flemmer v. Monckton, 73 Cal.App.2d 271, 166 P.2d 380. Roberts obviously took the truck in the honest belief that Fink had no objection to his using it. From the fact that one gives another permission on several occasions to use his property in certain circumstances, it may be implied that permission to use the same under similar circumstances holds good until revoked. Appellants argue that because Roberts and Fink testified that Roberts did not have express permission to use the truck on the occasion of the accident, that permission cannot be inferred. Such evidence may not influence the result on appeal where there is evidence from which implied permission may be inferred.

In view of our conclusion, it is unnecessary to pass on appellants' contention that the evidence is insufficient to support the finding that the corporation was the alter ego of Fink and that Roberts was an employee of Fink.

Affirmed.

VALLÉE, Justice.

SHINN, P. J., and WOOD, J., concur.